3073 FC Kryvbas V

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2013/A/3073 FC Kryvbas v. Ervin Bulku, award of 21 October 2013 Panel: Mr Mark Hovell (United Kingdom), Sole Arbitrator Football Contract of employment Unauthorised leave Interpretation of the provision of the contract relating to disciplinary sanctions 1. Absent any documentary evidence produced by either party to support their respective submissions that a player was or was not given permission to leave, it appears on balance unlikely that a club would allow a player to leave two days before a scheduled final match and before further training scheduled too. As such, it can be determined that the player is absent without permission. 2. If the drafting of a provision is unclear and leaves itself open to interpretation, priority must be given to a logic and reasonable interpretation of the clause. Therefore, if in the annex to an employment contract the majority of the 16 examples of behaviour that can result in a fine would incur fines of a few hundred US dollars and only 3 behaviours would incur a fine of “100% of salary”, the logic and reasonable interpretation of a sanction for unauthorised leave incurring one of these fines of “100% of salary” cannot be 100% of the salary for one month knowing that the player earns a monthly salary of USD 30’000. It can only be meaning 100% of the salary for the days of unauthorised absence. 1. THE PARTIES 1. FC Kryvbas (hereinafter referred to as the “Club” or as the “Appellant”) is a football club with its registered office in Kryvyi, Ukraine. At the commencement of this procedure, it was a member of the Football Federation of Ukraine (hereinafter referred to as the “FFU”) and, played in the Ukrainian Premier League. 2. Mr. Ervin Bulku (hereinafter referred to as the “Player” or the “Respondent”) is an Albanian professional football player. 2. FACTUAL BACKGROUND 3. Below is a summary of the main relevant facts and allegations based on the parties’ written submissions and evidence adduced in the present proceedings. Additional facts and allegations CAS 2013/A/3073 2 FC Kryvbas v. Ervin Bulku, award of 21 October 2013 may be set out, where relevant, in connection with the legal discussion that follows. Although the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, he refers in his award only to the submissions and evidence he considers necessary to explain his reasoning. 4. On 1 July 2009, the Player and the Club entered into an employment contract for the duration of 1 July 2009 to 30 June 2010 (hereinafter referred to as the “Contract”). 5. On 14 July 2009, the Contract was registered in the Union of Professional Football Clubs of Ukraine Premier League. Further, on the same date, the Player’s annex to the Contract was also registered (hereinafter referred to as the “Annex”) which dealt with the financial obligations of the Club and the potential financial sanctions that may be imposed on the Player. 6. The Club scheduled a training camp between 11 and 25 January 2010, in Belek, Turkey. 7. On 11 January 2010, the head of the Club’s team, the assistant of the chief coach and the sports physician all sent separate memorandums to the general director of the Club stating that the Player had failed to appear at training at the appointed time on that date and with the latter stating that the Player was absent from his physical examination. 8. On 12 January 2010, the head of the Club’s team, the assistant of the chief coach and the sports physician all again sent memorandums to the general director stating that the Player had again failed to report to training and for his physical examination. 9. On the 11 and 12 of January 2010, the head of the Club’s team, the administrator of the team and the coach of the team all signed a statement in relation to the Player’s absence from training. 10. On 13 January 2010, the Club issued an order to reprimand the Player for failing to attend training on 11 January 2010 (hereinafter referred to as the “First Order”). Further, both two personnel department inspectors of the Club and the head of the team signed a statement stating that the Player had been provided with the First Order but had refused to sign the same. 11. After the training camp, on 25 January 2010, the main coach of the Club sent a memorandum to the general director of the Club stating the Player’s performance during the training camp in Turkey for the period of 14 to 25 January had been unsatisfactory. The main coach requested the general director to convene a meeting with the Club’s coaching staff, so the general director could discuss the possibility of relegating the Player to the Club’s “backup team”. 12. On 26 January 2010, the Club’s coaches met with the general director. It was decided that the Player should be moved to the backup team from 1 February to 30 April 2010. 13. On 26 January 2010, the Club issued an order to move the Player to the backup team from 1 February to 30 April 2010 with a reduction of salary “to 20 000 USD in UAH equivalent” (hereinafter referred to as the “Second Order”). 14. On 27 January 2010, the Club’s accountant, personnel department inspector and general accountant all signed a statement stating that the Player had refused to sign the Second Order. CAS 2013/A/3073 3 FC Kryvbas v. Ervin Bulku, award of 21 October 2013 15. On 22 April 2010, the Albanian Football Association (hereinafter referred to as the “AFA”) wrote to the Club requesting that a number of Albanian players, including the Player, be released on 18 May 2010 to the AFA until 2 June 2010 to enable them to participate in two friendly international matches. The Player and the other Albanian players at the Club asked if they could leave in advance of that date, but as the squad was still training and had a final game on 9 May 2010, the Club verbally refused their request. 16. On 1 May 2010, the Player apparently rejoined the first team of the Club for training. 17. On 5 May 2010, the Club issued an order, entitled “Order No 06”, for the chief coach of the Club to announce after the final match on 9 May 2010. The announcement was the date of the next training camp commencing on 10 June 2010 at 2pm. 18. On 7 May 2010, the assistant of the chief coach and head of the team both sent a memorandum to the general director of the Club stating that the Player had “willfully left the location of the team” on that date and requested him to take appropriate measures. Further, the sports physician sent a memorandum to the general director stating that the Player was absent from his physical examination on that date. 19. On 8 May 2010, the sports physician again sent a memorandum to the general director stating that the Player was absent from his physical examination on that date. Further, the head of team and assistant of the chief coach both sent a further memorandum to the general director stating that the Player was absent on that date. 20. On 9 May 2010, the chief coach, coach and administrator of the team signed a statement providing that the Player was absent when the details of the June training camp was announced to the team. 21. On 9 May 2010, the sports physician again sent a memorandum to the general director stating that the Player was absent from physical examination on 9 May 2010. Further, the head of team and assistant to the chief coach sent a memorandum to the general director of the Club stating that the Player was absent from both, the final match with FC Zakarpattia, and from the team meeting after the game. 22. On 10 May 2010, the team’s chief coach, coach, and administrator all signed a statement in relation to the Player’s absence from 7 May 2010. 23. On 10 May 2010, the “team’s coaches” met with the general director in relation to the Player’s absence from 7 May to 9 May 2010. They discussed possible sanctions to impose on the Player. They decided that the Player should be deprived of his May 2010 salary payment pursuant to the Contract and the Annex. 24. On 11 May 2010, the Club issued an order entitled “Order No 55-k” (hereinafter referred to as the “Third Order”) to set the Player’s salary for May 2010 as the amount defined by legislation as the living wage for an able-bodied person in connection with the Player’s unauthorised departure on 7 May 2010 and his failure to appear at the training between 7 and 9 May 2010. CAS 2013/A/3073 4 FC Kryvbas v. Ervin Bulku, award of 21 October 2013 25. On 10 June 2010, the sports physician sent a memorandum to the general director stating that the Player was absent from his physical examination. Further, the assistant of the chief coach and head of team both sent a memorandum to the general director stating that the Player did not appear at the training base at the scheduled time on that date. 26. On 11 June 2010, the sports physician sent a memorandum to the general director stating that the Player was absent from his physical examination.

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